Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC470150
RUSHING, P.J.
Defendant Henry Herman Castro, Jr. pleaded no contest to various charges and received 20 years in state prison pursuant to a plea agreement. At sentencing, defendant requested the court grant him credit for the approximately one year he spent in custody on a previous case to which he was acquitted of almost all of the charges. The trial court declined to award the credit on its conclusion that it did not have the discretion to do so.
On appeal, defendant asserts the trial court erred in not exercising its equitable power to award him credit for being incarcerated for 14 months in the county jail on charges that, for the most part, resulted in an acquittal.
STATEMENT OF THE FACTS AND CASE
We provide an abbreviated statement of the underlying facts because they are not relevant to the issue on appeal.
In May 2004, then 6-year-old Jane Doe stated that defendant, who is the father of her two siblings touched her on her vagina and buttocks “a lot” both above and under her clothing and that it hurt when he did so.
In April 2005, defendant was charged with one count of child molestation (Pen. Code, § 288, subd. (a)), and three counts of child molestation by force. (§ 288, subd. (b)(1)). Defendant pleaded no contest to three counts of child molestation by force in exchange for a dismissal of count one and a 20-year prison commitment.
All further statutory references are to the Penal Code.
At defendant’s sentencing hearing on November 18, 2005, defendant was sentenced to 20 years in state prison, and requested custody credits from case No. CC119243 be applied. In that case, defendant was incarcerated from August 5, 2001 until September 27, 2002, on charges that resulted in an acquittal except for one misdemeanor conviction of falsely representing his identity to a police officer (§ 148.9), to which the court committed defendant to 90 days. The trial court denied defendant’s request of custody credits from the previous case.
This court granted a motion for relief from default of filing a late appeal in November 2006.
DISCUSSION
Defendant asserts the trial court erred when it found it had no discretion to award him custody credits on his current sentence for time he spent in jail on an unrelated case for which is he was acquitted of most of the charges. Defendant bases his argument on concepts of fair play inherent in the due process clause.
Procedural Background
At the sentencing hearing, defense counsel asked the court to grant defendant custody credits served in a domestic violence case in which he was incarcerated from August 5, 2001, until September 27, 2002 (419 actual days). These charges resulted in a dismissal except for one misdemeanor conviction for a violation of section 148.9, for which defendant received 90 days in custody. Defense counsel argued “[g]iven that [defendant] has served in excess of 15 months of actual time, and that it was a crime that he was acquitted of, I would ask the court to apply that credit for the crime to which he was convicted.” The court responded: “[w]ell, this was discussed among myself and my colleagues on the various credits by people who are acquitted and released and found not guilty or it’s the wrong person, and the story is that we should open up a C.T.S. bank in which to apply to the credits in future events.”
The court and counsel all agreed that there was no decisional authority on the issue of a custody credit bank. In addition, although the court was sympathetic with defendant’s request, it did observe that there was no overlap in the custody time between the original case and the present one, noting that there was a two-year gap between defendant’s release on the first case, and arrest on the second. Finally, the court declined defense counsel’s request citing lack of authority, stating: “[i]f I had the authority to do so by . . . appellate court that says we have the authority . . . if the case is on appeal[,] if the appellate court tells me I do have the authority, they’ll bring it back for modification.”
Analysis
Generally, criminal defendants convicted of felonies are entitled to credit for time spent in custody prior to sentencing. (§ 2900.5.) Defendants also are permitted credits for good conduct during pre-sentence custody. (§ 4019.) Under the statute, it is the duty of the sentencing court to calculate actual days spent in custody for purposes of determining custody credits. (People v. Shabazz (1985) 175 Cal.App.3d 468, 473, citing § 2900.5, subd. (d).)
Defendant’s argument in this appeal is based on fundamental fairness under the due process clause. He principally relies on two cases to support his assertion that he should be entitled to credit for time he served on a case in which he was partially acquitted.
In North Carolina v. Pearce (1969) 395 U.S. 711 (Pearce), the United States Supreme Court considered the issue of whether a defendant was entitled to credit for time served on a conviction that was later reversed, only to be retried and convicted again. The court found in the affirmative on due process grounds, stating: “[w]here, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, ‘penalizing those who choose to exercise’ constitutional rights, ‘would be patently unconstitutional.’ ” (Id. at p. 724.)
Similarly, in People v. Schuler (1977) 76 Cal.App.3d 324 (Schuler), the court considered the custody credit issue as it related to the plea bargain context. In Schuler, the convictions to which the defendant pleaded guilty were later reversed as constitutionally invalid. When the same charges were later reinstated, and the defendant pleaded guilty a second time, the court deemed the time he originally served under the first plea deal as credit on the second.
The courts in both Pearce and Schuler relied on traditional notions of substantial justice inherent in the due process clause in arriving at their conclusions. Defendant asks us here to apply the same rationale. However, critical to the courts’ determinations in both Pearce and Schuler was that the defendants were charged in the second cases with the same charges that were alleged in the first. It was only because the initial convictions were reversed that the crimes were recharged and the defendants again convicted. Based on these facts, the Pearce and Schuler courts determined that justice required that the defendants be given credit for the time spent in custody on the initial convictions.
In Schuler, the court stated: “the same traditional notions of fair play which underline the due process concept…compel the conclusion that where defendant is charged with a number of offenses, and he enters into a plea bargain that is set aside for reasons of unconstitutional process employed in taking the plea, and then enters into a second plea bargain involving the same charges, he is entitled to credit for time spent in prison pursuant to the first plea bargain, even though precise counts to which he pleaded guilty in each bargain were not the same.” (Schuler, supra, 76 Cal.App.3d at p. 335, fn. omitted.)
Here, defendant argues that the same rationale as that in Schuler should apply because “the prosecuting party was the same in both cases and the denial custody credits would work a fundamental unfairness, as the trial court itself tacitly acknowledged.” However, the similarity of the prosecuting parties was not the pivotal point in Schuler; it was the fact that the charges were the same and the cases themselves were from the same operative facts. Here, other than the prosecuting party being the same, defendant’s cases involve different charges and arise from different facts. Therefore, the notion of fair play relied upon by Schuler is not compelling here.
An argument similar to defendant’s was rejected in People v. Murrillo (1986) 178 Cal.App.3d 232 (Murrillo), in which the court denied the defendant’s request for credit in a subsequent case for time he spent in custody on charges that were dismissed. However, the Murrillo court based its decision on the statutory authority of section 2900.5, and its provision that presentence credits are authorized “only where” the custody is “attributable to proceedings related to the same conduct for which the defendant has been convicted.” (§ 2900.5, subd. (b), italics added.) The count held: “[t]he conduct underlying the dismissed charges was unrelated to the present offense, and defendant was not convicted of those charges.” (Murrillo, supra, 178 Cal.App.3d at p. 237.) The court further concluded that it did not find the result unfair to the defendant, because “[b]y obtaining dismissals of unrelated cases . . . [he] avoided the possibility of numerous additional criminal convictions and substantial additional periods of incarceration.” (Id. at p. 238.)
In Murrillo, the court did not consider the award of credits under a due process analysis as we are being asked to by defendant. But, Murillo’s rationale is similar in substance to cases in which due process was considered, such as Pearce and Schuler. Of particular importance to all of the courts was the similarity of the charges in the first cases with the subsequent ones. Here, there is no such similarity. The prosecuting party may be the same, and they both may be related to domestic violence, but the cases and charges are different.
Moreover, we are concerned with the concept of allowing a defendant to apply credit for time he spent in custody for which he was acquitted to future charges and commitments of incarceration. Criminal conduct would not be deterred if previous prosecutions where the defendant is acquitted of certain charges resulted in a “credit bank” for future use. Indeed, a defendant could anticipate such credit to avoid punishment for future crimes, and in fact could have enough credit “banked” to exceed the punishment for a new offense. Certainly, this is contrary to the purpose of criminal law, which is the protection of the public and the deterrence of crimes.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.